Brexit: Breaking The Deadlock

The impasse within Parliament currently engulfing the Brexit process is both concerning and dangerous. This political infighting has ensued for over 24 months and shows little sign of a definitive end result, and the future of democracy in the UK is at stake. Prime Minister Theresa May’s Withdrawal Agreement has little Parliamentary support from all parties hence why she delayed Parliament’s meaningful vote scheduled for 10th December 2018. The vote, due to take place during the week 14th January 2019, is likely to face decisive rejection. The European Union has also made it clear the agreement is not open for re-negotiation. This is exacerbated by Labour and the Conservative’s inability to collectively agree on the type of Brexit they want. Therefore, where do we go? When you consider that Brexit, notwithstanding the ‘soft’ and ‘hard’ variations, means ‘leave the European Union’, it becomes all the more troubling we are at such a deadlock with little clarity on the path we are following. This article will re-clarify the competing party positions and explore what possible options we could take going forward in order to make substantive progress

Competing Party Policy

With so many arguments advanced prior to and after the 2016 referendum, it is easy to lose thread of what the two main political parties think on Brexit. The opposing views within and amongst these parties is the fundamental cause of the deadlock. It is therefore useful to take a step back and re-establish them.

The Conservative Party

The Conservatives are fundamentally divided by Europhile and Eurosceptic factions. As a result, it is impossible to define what their collective party view on Brexit is. The reality: they do not have one. They reiterate their commitment to deliver on the 2016 referendum result but cannot decide between themselves on the path we should follow. Theresa May is often held to ransom for adopting the infamous ‘Brexit means Brexit’ slogan when she succeeded David Cameron as party leader and Prime Minister in July 2016.

On one wing of the party you have ardent remainers including Dominic Grieve, Chancellor of the Exchequer Philip Hammond and Anna Soubry pushing for a soft Brexit where we remain closely aligned with Europe. The exact form this would take is not quite clear. Mr Hammond recently went as far as branding Brexiteers within his party as ‘extremists’, and has made many a dire warning on the consequences of a no-deal Brexit, described by some as ‘Project Fear 2.0’.

Many of those who favour a hard-Brexit are part of the increasingly influential ERG (European Research Group), which comprises of between 80-100 Eurosceptic Conservative MPs. Chaired by staunch Brexiteer Jacob Rees-Mogg, they seek either a no-deal Brexit by leaving on WTO (World Trade Organisation) terms, or a ‘Super-Canada’ free trade deal with the EU. The ERG contains many party heavyweights including Boris Johnson, David Davis and Iain Duncan Smith, which only helps to breed ideological division within the party. Collectively, the ERG intends to vote down Mrs May’s deal, primarily due to the Northern Irish backstop. They claim it would prevent us from striking free trade deals with other third countries and keep us shackled to the customs union. These competing factions have caused a civil war from within, which may even see the party collapse in the future by its own hand. Unity and reconciliation over Brexit is not likely to ever be seen. The confidence and supply agreement with the DUP (Democratic Unionist Party) that gives them a majority to be in government is also a big problem. For the DUP, the Withdrawal Agreement is unacceptable and they will vote it down unless further assurances are obtained, particularly that the Northern Irish backstop is not permanent if required. Without the DUP’s support, circumstances would only worsen for the Conservatives in this current Parliament.

The Labour Party

Labour appears to have a somewhat clearer but nevertheless indecisive view on Brexit through a ‘six point test’. This test requires that any withdrawal agreement must:

Ensure a strong and collaborative future relationship with the EU is maintained

Deliver the same benefits that we currently enjoy as members of the single market and customs union

Ensure fair management of migration in the interests of our economy

Protect rights

Protect national security and our ability to tackle cross-border crime

Deliver for all regions and nations of the United Kingdom

Overall, the party seeks a “soft-Brexit”, which is more than the Conservatives can decide on, but the intricacies are unclear. Labour leader Jeremy Corbyn has regularly hinted at a ‘renegotiated and permanent customs union’.. Labour peer and Shadow Attorney General Baroness Chakrabarti said on BBC Question Time earlier this month that Labour would seek to keep the entire UK in the customs union. In Labour’s view, this avoids breaking up the UK by avoiding a hard border in Northern Ireland, and maintains frictionless trade with the EU. However, such a policy has been criticised on the point that the customs union is an integral feature of EU membership. Therefore, if you leave the EU you cannot have access to it, so some would suggest Labour want to ‘have their cake and eat it’. Criticism does not end there, some Labour MPs such as Chuka Umunna propose our Brexit path should be ratified by the people due to Parliament’s inability to reach a consensus.

Though they appear to have a clearer view, Labour’s position on Brexit has changed many times throughout the withdrawal process. Their customs union commitment was half-baked until very recently. Mr Corbyn campaigned to remain, indeed the majority of Labour members (65%) voted remain, but he has hesitantly committed the party to implementing the referendum result were Labour to get into power. Many Labour MP’s are however, vocal advocates of a second referendum. The question to be asked of Labour is; do they in reality want to remain in the EU instead of leave? They need to come out and be crystal clear on their position. Their lack of an official alternative plan does not help those that dislike Theresa May’s deal and want someone else to come in and take control.

Breaking the Deadlock

Second Referendum/People’s Vote

There are two primary options advocated under the “People’s vote” movement with slightly differing proposals, both seeking to place power back with the British people. The official “People’s Vote” Campaign seeks a second referendum which would put the question of ‘leave’ or ‘remain’ back to the people in demonstration that the will of the people has changed. Other politicians advocate a People’s Vote where Mrs May’s Withdrawal Agreement is put to a public vote, with the ballot also containing an option to remain in the EU or to leave with no deal.

In light of how the withdrawal process is ensuing, many are claiming the will of the people has changed and that Brexit has been exposed to be a body of false promises. A recent Sky Data poll (December 2018 ) revealed that 53% of Britons now seek a second referendum on our EU membership. . Undoubtedly this option has its merits but the stark difference between its theory and practice is quite apparent. On a theoretical level it makes sense to ask the question again because what was promised is not set to happen, not least the infamous £350 million a week to the NHS claim championed by Boris Johnson and Nigel Farage. From a practical perspective, though a second referendum would be a clear exercise of democracy, it has a potential shortfall, and a big one at that. If we have a second referendum there is the possibility of a dangerous precedent being set. Although referenda are not legally binding, they are inherently binding in practice because if the government who conducted it did not implement the result, there would be much public uproar. The introduction of a second referendum would raise the constitutional question: when is a referendum result acceptable ? If the 2016 referendum is not accepted and a second referendum is held, the answer to the question becomes very unclear. It is undeniable the will of the people can change, and it very well may have regarding EU membership, but the constitutional implications of a second referendum could be very problematic.

Analysis

Green Party leader Caroline Lucas, one of its many advocates, said in Channel 4’s ‘The Real Brexit Debate’ (9th December 2018).

“We, all of us, know so much more now than we did two years ago, and a People’s Vote would be your first chance to vote on the facts…so lets be sure.

Naturally, such an idea is deemed unfathomable by Brexiteers. Lucas’ adversary in the debate, Conservative MP Jacob Rees-Mogg, described it as a ‘loser’s vote’ desired by those who did not get their way in the 2016 referendum. Mr Rees-Mogg claimed there have in fact been three votes on EU membership: the 2015 General Election victory for the Conservatives whose manifesto promised an in-out referendum, the 2016 EU referendum, and the 2017 General Election where Labour and the Conservatives promised to implement the referendum result. There is a degree of truth in such reasoning, but it bluntly ignores the point made by second referendum advocates: the will of the people can change. It further ignores the deadlock that currently exists with Mrs May’s Withdrawal Agreement. If the politicians cannot reach agreement on an outcome, a people’s vote could be one of the only viable options to break the deadlock. Given Mrs May’s hostility to a second referendum and the logistical challenge of setting up another referendum, it is difficult to see a people’s vote under her premiership.

The Prime Minister herself recently confirmed the government would not table a second EU referendum, and reiterated “it is important for us to deliver on the vote that people took…we will leave the European Union on 29 March 2019”. Yet given the opposition she faces, it may turn out to be one of few options left.

No-deal Brexit & ’Super Canada’

It is the holy grail for the majority of Brexiteers by which we can apparently shape our own future and truly ‘take back control’. As previously noted, they seek to leave with no deal by adopting WTO terms or strike a free trade deal similar to that which Canada has with the EU. The Eurosceptic ERG’s main reason for seeking a departure based on WTO terms is it allows us to strike free trade deals with third countries (those not in the EU) worldwide which Theresa May’s withdrawal agreement may not allow. The key objection for Brexiteers is the Northern Irish backstop. Despite it being an insurance policy that will only be effected in the case that we do not strike a free trade deal with the EU by the end of the transition period, it would see the UK remain in the customs union. It would mean Northern Ireland would be contained in a customs territory with the rest of the UK, and in a customs territory with the Republic of Ireland/rest of the EU. In addition they believe by leaving on no deal, the jurisdiction of the European Court of Justice will end immediately on exit day (29th March 2019) instead of at the end of the transition period in 2020.

As is common within news coverage of no deal, and comments by pro-EU MPs, no deal would cause much disruption. Free trade deals take a long time to negotiate. The quickest US trade deal to be negotiated and implemented was between the US and Jordan, taking 18 months. The average is around 42 months. It is estimated the UK would need to negotiate and implement around 795 bi-lateral deals if a no-deal Brexit occurred (see previous article). To accomplish this in a smooth manner would be painstaking and probably impossible. Moreover, only one country currently negotiates on purely WTO terms, Mauritania, so there is no precedent for such a move. We would gain the ability to set our own quotas, but we must negotiate these with every WTO member. There are over 140 members. No deal can offer a clean break with the EU in theory but in practice, as above, it could not be more risky. Perhaps the most alarming news that has emerged recently is the removal of the word ‘unlikely’ from government no-deal Brexit papers. Prior to amendment they read “In the unlikely event of no deal”, but now they read “In the event of no deal”. The government claim they have always been preparing for no deal, but such an increase in these preparations and this recent amendment suggests that wide-spread condemnation of Mrs May’s Withdrawal Agreement is starting to strike a nerve.

‘Super Canada’, prominently advocated for by former Foreign Secretary Boris Johnson, includes zero tariffs and quotas on imports/exports, mutual recognition of UK/EU regulations to ensure conformity on standards and smooth supply chains. However, Canada’s free trade agreement with the EU, CETA, lacks a common rule book with the EU and it does not cover services, only goods. Adopting a Super Canada would require a hard-border in Northern Ireland, this breaks up the territorial integrity of the UK, crossing one of Mrs May’s red lines and also deeply unpopular with MPs. Citizens are also hostile to such a consequence.

No Brexit (revoke Article 50)

Though this has long been talked about since the referendum result, the practicality of it has not been obvious until very recently. The European Court of Justice ruled in the Wightman case that the UK is free to unilaterally revoke its intention to withdraw under Article 50. Despite this, Brexit Secretary Stephen Barclay has said “the government’s firm and long held policy is that we will not revoke the article 50 notice”. Like the second referendum, this currently has little hope of success due to ardent government opposition.

Conclusion

In conclusion, there are several options on the table, all of which have their individual merits but are strongly opposed by the government. They believe they are delivering Brexit for the British people. Yet it must not be ignored by anyone, not least the Prime Minister, that a Plan B is required. The conundrum is whilst the Withdrawal Agreement lacks a majority of support, so do the above options. Divisions both at an internal and cross-party level are so deep that we are in a vicious cycle of argument. We could by default face the prospect of no Plan B, or at least nothing beyond a no-deal Brexit. Mrs May has a lot of persuading to do if she is to get enough MPs onboard to vote for her Withdrawal Agreement, but time is short and the EU have stood firm they will not renegotiate it. Both sides cannot win so who will concede? Only time will tell, but the situation the government finds itself in is deeply troubling. Dominic Grieve’s amendment to the EU Withdrawal Act allows MPs to propose and debate alternatives if the Withdrawal Agreement, as expected, is rejected in January 2019’s meaningful vote. Unless MPs can start coming to a consensus, this will be just as dead in its effect as the Withdrawal Agreement currently is. The clock is ticking.